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March 02, 2005

The Exclusionary Rule; Ward Churchill

A reader asked me

Prof Braider is a professor of French literature at U of C, and advances the argument that since the investigation into Ward Churchill was based upon his controversial comments, any evidence of lies, plagerism, academic fraud, etc cannot be used against him. Freedom of speech will void any non speech related issues that happen to turn up in the process.

Is there legal precedent for this, or is this just academic posturing?

That is false, I think, as a legal matter, and even if it were not, that would not matter in the end. This is by analogy with the exclusionary rule in criminal procedure, a peculiar rule that says that if the police search my house for drugs without a proper warrant, and find ten dead bodies rotting in my basement, they cannot act on that information to go after me for murder. I'll come back to the desirability of that rule later, but for the moment note that if at the same time the neighbors are complaining that my house stinks of decaying flesh and other evidence points to my criminality the police can conduct a second search based on that, and use the evidence so obtained. In the Ward Churchill case, people have previously been complaining that he was an academic fraud, quite independently of the current controversy. It is legitimate for his Chancellor to start an investigation based on that-- or not to start one, as the Chancellor pleases. Moreover, once an investigation starts, it certainly is not limited to misconduct of the kind that started it. Thus, even if the current 30-day investigation would be ruled improper, the Chancellor could just start a new one, to achieve the same result.

Now back to the exclusionary rule. This might be worthy my writing a scholarly article about.

There are two reasons for the exclusionary rule. One is the purely formalist idea that this is analogous to other parts of the law, where a person cannot benefit by his own bad behavior. Here, the police should not benefit from an illegal search.

The second reason is that we want to deter the police from making illegal searches. This is a good motivation, since we indeed want to avoid illegal searches. But why do we want to avoid them? Because we want to avoid searches that hurt innocent people. There is nothing intrinsically bad about the police not getting the right paperwork done before they conduct a search; the reason we require the paperwork is that unless the police can convice a judge that they have a good reason, the search probably isn't justified because it has too high a chance of hurting an innocent person and not coming up with evidence of a crime. The reason for the paperwork is not to hinder the capture of criminals, but to prevent police from making unjustified searches. But the exclusionary rule's cost of a few criminals who get away is worth the benefit of deterring a lot of unjustified searches.

As solution to the problem of unjustified searches, of course, the exclusionary rule does have a glaring problem: it does not punish anyone for making a truly unjustified search. If the police ransack my apartment and find that I haven't committed a crime, the exclusionary rule just tells them they can't use the evidence they haven't found to prosecute me. The exclusionary rule only helps punish the police when their search was justified, because there did exist evidence of a crime.

TA more straightforward solution to the problem of unjustified searches is simply to punish police who do them. If the police want to risk cutting corners in making a search, they can, but if the search doesn't turn up anything, they are in deep personal trouble. Since if the search *does* turn up something, they get only a mild personal reward-- the career credit of having turned up some useful evidence-- the incentives would still be for the police to be overly cautious. Remember, most of the benefit from catching a criminal goes to the public; the policeman gets paid the same salary whether he catches criminals or not.

I'll mention a couple of other arguments about the exclusionary rule.

First, it gives a big advantage to expensive lawyering relative to pure justice. The rule is all about complying with legal niceties. Thus, it puts a premium on expensive legal talent, and especially benefits rich criminals such as drug dealers or white collar criminals relative to the ordinary citizen.

Second, it makes it easier for corrupt police to protect criminal allies. If the police feel they have to investigate a case because of public pressure, but they don't want to actually convict the criminal, they can foul up the search procedure and blame the courts for the criminal staying free.

I wonder, too, if anyone's thought about the following hypothetical. Smith is on death row, having been convicted of murder. The police make an illegal search of Jones's car, and find a signed confession that says Jones did the murder, not Smith. Should Jones remain free and Smith die? That is the logic of the exclusionary rule.

If you like, add to the above hypothetical that the police also find a plan by Jones to murder a third person, Roe, the following week. Should the police be allowed to warn Roe that he is in danger?

The exclusionary rule has long been criticized, so probably most of these criticisms are well known. I know I was surprised when I wrote an article on the supposed "right against self-incrimination" at how little attempt there was in the law journals to justify it, and how many criticisms of its logic. The law of criminal procedure is a mess.

Posted by erasmuse at March 2, 2005 09:58 PM

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The hearing CU is likely to hold over Churchill isn't really a legal hearing. It will be an administrative hearing under the guidelines primarily of the American Association of University Professors 1940 Statement on Academic Freedom and Tenure, paragraph c, which covers extramural speech by professors. That professional canon says it must be accurate and restrained. Various comments on the paragraph say that an institution may hold an investigation of a professor for such speech, but it must be held in the context of his entire scholarly performance (1970 comment). CU President Elizabeth Hoffman appears to have been telegraphing what will happen -- they are likely to find his speech was excessive, given the standards of recent discipline and firings, and also his scholarship is bad. So plagiarism (minor as far as I've heard) but also inaccurate use of footnotes and copyright theft will also be considered in such a hearing.

Posted by: John Bruce at March 3, 2005 09:06 PM

That AAUP statement is interesting-- and little known.

I would still count Churchill's "little Eichmann's" speech as okay, though, because though extreme, it is still just arguing for a position (unlike, for example, his earlier attacks on the COlumbus Day parade). You're probably right that U. of C. will try to stick something in to attacking his speech, to please the politicians, while really punishing his academic fraud, which is all Colorado can legally punish him for, given his contract.

If that happens, I'll criticize U. of C. for going after Churchill's academic freedom-- for firing Churchill partly for the wrong reasons.

Posted by: Eric Rasmusen at March 5, 2005 09:27 AM

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